Drummond v. City of Eau Claire, 85 Wis. 556

Drummond v. City of Eau Claire

85 Wis. 556 | Wis. | 1893

Cassoday, J.

1. The defendant seeks to justify the judgment on the ground that the claim filed by the plaintiff with the city clerk for the action of the common council was for damages by reason of the lawful change of grade in front of the plaintiff’s premises, whereas the complaint *560based upon sucb claim, served and filed after the cause was appealed to the circuit court, is for damages by reason of the unlawful change of such grade; and in support of his contention he relies upon Smith v. Eau Claire, 83 Wis. 455. In that case the claim filed stated the facts in detail, and clearly showed that the damage claimed was for a lawful change of grade; and it was merely held that the plaintiff could not, on appeal, change his cause of action by claiming damage for an unlawful change of grade. In the case at bar the claim filed was general, being simply, “ For damage caused by change of grade, $1,500.” It did not even describe the plaintiff’s premises. But it does not appear that the plaintiff had any other premises to be' affected by such change of grade, and the common council acted upon it and disallowed it without regard to its informality; and then, in the stipulation between the parties for formal pleadings, such filing, disallowance, and appeal are recited, and it is therein stated that the plaintiff claims “ damages of said city for changing the grade of Bridge street, a certain highway of- said city, in front of the premises of said plaintiff,” therein described. The complaint filed and served in pursuance of that stipulation was expressly based upon that claim, and the sufficiency of that complaint was sustained on demurrer by the trial court, and the order sustaining the same was affirmed by this court. 79 Wis. 97. Such being the state of the record, we cannot hold that the complaint fails to state a cause of action, nor that the claim filed was insufficient to sustain the action.

2. It seems to be conceded that the attempt to re-establish the grade of the street in question was abortive, and that the raising of the same several feet in front of the plaintiff’s premises was without any lawful authority. This being so, it is manifest that the plaintiff is entitled to recover any damages sustained by reason of such trespass upon, *561and injury to, bis premises. Crossett v. Janesville, 28 Wis. 420; Hamilton v. Fond du Lac, 40 Wis. 47; Dore v. Milwaukee, 42 Wis. 108; Meinzer v. Racine, 68 Wis. 241; S. C. 70 Wis. 561; S. C. 74 Wis. 166; Addy v. Janesville, 70 Wis. 401; Drummond v. Eau Claire, 79 Wis. 97. The important question for determination is tbe measure of such damages. In Crossett v. Janesville, 28 Wis. 420, the trial court charged the jury that the plaintiff was entitled to recover “for all the direct and proximate damages to her premises, caused by the grading in question,” and “ that the measure of the plaintiff’s damages was the actual depreciation in the value of her lots by reason of the grading having been done at the time and in the manner it was done.” The correctness of the charge, however, was not challenged upon such ground, but was assumed by this court. The same is true with respect to Meinzer v. Racine, supra, where the charge was substantially the same. In Addy v. Janesville, 70 Wis. 401, it was held, in effect, that, “where a city, by unlawfully raising a street above the established grade, causes surface' water to flow or accumulate upon an-abutting lot, it is liable to the lot-owner for the injury occasioned thereby;” that under a complaint alleging such unlawful raising of the street it was competent to prove the “ insufficiency of a culvert by which such water might have been conducted away ” from the plaintiff’s lots. It was there contended that the city was not liable for such consequential damages from mere surface water by reason of such change of grade, and numerous cases in. this court were cited in support of such contention. In answer to such contention, Cole, C. J., speaking for the court, there said: “ These cases are inapplicable to the present, for the obvious reason that here the common council'had no-authority to change the grade without taking the steps prescribed by the charter to give them power so to do.” The trial court in that case charged the jury “that the city had *562shown no authority whatever for raising the grade, and if such raising of the grade, without sufficient culverts or gutters to carry off the waters as rapidly as they were carried off before, produced injury to the plaintiff, the raising was, as to her, unlawful; and if done by the city, or if the city ratified the raising of the grade after it was done by paying for the work, the city v/as liable to her for all damages which naturally resulted from the raising, of the grade, with its insufficient gutters or culverts to conduct the waters as rapidly as they flowed off before the grade was raised.” An exception to this portion of the charge was there overruled. That case was cited approvingly by Mr. Justice OetoN when the case at bar was here on the former appeal; and he there said, in effect, that as the grading was done without authority and unlawfully the city was “liable to the plaintiff for such damages as he had suffered, which were caused by it.” 79 Wis. 102.

Such are the adjudications of this court in respect to the measure of damages in cases where the regrade was done without authority of law. On the other hand, this court has, in effect, frequently held that where a change of grade in a street is made under authority of law and with due care, the municipality is not liable for eonsegueniial injury to abutting lots, unless made so by statute or the constitution. Smith v. Eau Claire, 78 Wis. 457; Wallich v. Manitowoc, 57 Wis. 9; Harrison v. Milwaukee Co. 51 Wis. 662-665; Tyson v. Milwaukee, 50 Wis. 78; French v. Milwaukee, 49 Wis. 584; Stadler v. Milwaukee, 34 Wis. 98; Stowell v. Milwaukee, 31 Wis. 523; Church v. Milwaukee, 31 Wis. 512. In the case at bar the trial court in charging the jury apparently followed the rule of law laid down in the case last cited. The provision of the city charter upon which that case was based was to the effect that all damages, costs, and charges arising from a change in the grade of the streets therein should be paid by the city to the owner of *563any lot injured thereby; and it was “held that while any peculiar or special benefit conferred upon the plaintiff’s lot, not common to other lots in the neighborhood, and not increasing its market value, could not be considered by the jury in fixing the damages, yet if such lot, in consequence of the changed grade, was appreciated in value in common with the other property in that locality, the city was entitled to have such increase of value deducted in the estimation of damages.” The rule of law stated in that case and in Stowell v. Milwaukee, 31 Wis. 523, as explained in Tyson v. Milwaukee, 50 Wis. 85-89, is only applicable where such regrade is under lawful authority; but has no application to a case like the one at bar, where the regrade is confessedly without any lawful authority., Hence, it was error for the trial court to follow that rule in the case at bar. It would be anomalous to hold that one may enter upon and injure the land of another, without any lawful authority, as a mere trespasser, and then defeat an action therefor on the ground that such unlawful acts were beneficial to the land or its owner. It is well settled that one who makes such wrongful entry upon land, and erects fixtures thereon, thereby loses title to the fixtures. Huebschmann v. McHenry, 29 Wis. 655; Kimball v. Adams, 52 Wis. 554. The plea of good faith by such trespasser is not even available in equity, as against the rightful and equitable owner of the land. Honzik v. Delaglise, 65 Wis. 501, and cases there cited. Such trespasser is, in all cases, liable to actual damages; and, although he may have benefited the land, still he would be liable at least for nominal damages. Murphy v. Fond du Lac, 23 Wis. 365; 3 Sedg. Dam. § 923. The measure of damages, in such case, is the amount of injury directly resulting from the unlawful acts committed. Ibid. In trespass guare clausum the plaintiff may be entitled to consequential damages. 3 Sedg. Dam. § 927. But it is unnecessary to continue the discussion, since the rule sane-*564ticmed by this court in the cases of Crossett v. Janesville and Addy v. Janesville, cited, where such regrading was without authority of law, seems to be substantially correct.

For the errors in the change, referred to, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

By the Court. — - Ordered accordingly.